Platform Terms & Conditions
These PLATFORM TERMS & CONDITIONS (these “Terms"), including any Order (as defined herein), addenda, exhibits and
schedules hereto (collectively, this "Agreement”), sets forth the terms and conditions pursuant to which DroneSense, Inc.
("DroneSense") shall provide the Services (as defined herein) and your access to and use of the Services. In the event of
conflict between the terms in an Order and this Agreement, the terms and conditions set forth in the Order shall govern with
respect to the Service provided under such Order. DroneSense may, at its discretion, update these Terms at any time. You can
access and review the most current version of these Terms at the URL for this page or by clicking on the “Platform Terms &
Conditions” link within the Services, or as otherwise made available by DroneSense. The most current version of these Terms
will be effective when posted and will replace and supersede any prior versions posted.
PLEASE REVIEW THESE TERMS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR
USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS, INCLUDING ANY UPDATES OR REVISIONS
POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND
CONDITIONS OF THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
If you are entering into these Terms as an individual, you represent and warrant that you: (a) are of legal age to form a binding
contract; (b) have the right, authority, and capacity to agree to and abide by these Terms; and (c) are not a person barred from
using the Services under the laws of any applicable jurisdiction. THE SERVICES ARE NOT INTENDED FOR USERS UNDER
THE AGE OF 18, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR
USING ANY ASPECT OF THE SERVICES, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT
THAT YOU ARE 18 YEARS OF AGE OR OLDER.
IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU
REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THE
TOS, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY,
YOU MAY NOT ACCESS OR USE THE SERVICES.
1. CERTAIN DEFINTIONS
1.1. “API” means any proprietary application programming interface made accessible by DroneSense that enables you
to, among other things, (i) insert or retrieve Customer Data (as defined herein) via the Services, and/or (ii) insert or
retrieve Customer Data from any approved Integrations via the Service.
1.2. “Anonymized Data” means Customer Data that has been aggregated in a manner that does not reveal any
personally identifiable information and cannot reasonably be used to identify Customer or any User as the source of
such data.
1.3. “Credentials” means any User Accounts, passwords, and other authentication credentials associated with use of
the Services by Customers and Users.
1.4. "Customer” means any individual or entity that has purchased access to the Services via an Order.
1.5. "Customer Facilities” means Credentials and any account, database, hardware, system or other facility within a
Customer’s custody or control.
1.6. "Customer Hardware” means any hardware used in conjunction with the Services, such as, but not limited to,
unmanned aerial systems.
1.7. “Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other
works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos, and other
source identifiers; trade secrets; software, databases, and data; and all other intellectual property and industrial
designs.
1.8. “Integrations” means any integration of the Services with Customer Facilities or Third Party Offerings which is
authorized by DroneSense and which is enabled by an API which enables Customer to input or extract Customer
Data into the Services from such Customer Facilities or Third Party Offerings.
1.9. “Malicious Code” means without limitation code, files, scripts, agents, or programs intended to do harm, including
without limitation viruses, worms, time bombs, and trojan horses.
1.10. "Mobile Apps” means mobile software applications DroneSense may make available for access to and use of
certain components of the Services.
1.11. "Order” means each order form, quote, or purchase order entered into in writing by a Customer and DroneSense
which makes reference to or to which these Terms are attached, and which specifies the Services, including any
Fees, number of authorized Users, and any additional terms applicable to a Customer’s access to and use of the
Services.
1.12. “Platform” means DroneSense’s proprietary offering branded as “DroneSense,” the websites at
https://www.dronesense.com, https://web.dronesense.com/ and any applicable domains and subdomains, any
Mobile Apps, and other related software, content and services, including all versions and upgrades thereto.
1.13. "Public Safety Event” means an adverse event, near-miss, or other event in a public setting resulting from unsafe
conditions that could potentially endanger the safety and security of the public, including but not limited to
hazardous conditions, natural disaster or security threats.
1.14. “Reports” means certain analytical and/or consolidated reports and insights generated by the Services with respect
to Customer Data and otherwise.
1.15. “Reports Templates” means DroneSense’s proprietary algorithms, models and other data analytics, and other
templates and tools which are provided by DroneSense to Customer and Users via the Services.
1.16. “Services” means any and all of the services, software and other offerings provided by DroneSense pursuant to this
Agreement, including without limitation, any Integrations, Reports, APIs, and all such services and software labeled
as alpha, beta, pre-release, trial, preview, early-access, limited-access, or otherwise, and including any
enhancements, updates, upgrades, derivatives or bug fixes to such services, software, and offerings, and any
documentation, add-ons, templates, and sample data sets as provided by DroneSense.
1.17. "Subscription” means a Platform subscription for the term and on the terms set forth in these Terms and the
applicable Order.
1.18. “Third Party Offerings” means services delivered or performed by third parties independently of the Services or
other online, web-based applicable subscription services, and any associate offline products provided by third
parties, that interoperate with the Services.
1.19. "Users” means employees and contractors of Customer who are authorized by Customer to access and use the
Services on Customer’s behalf and pursuant to unique Credentials which are associated with Customer’s account on the Services.
2. SAAS OFFERING
2.1. Provision of Service. During the Term of any Subscription and subject to the terms and conditions set forth herein,
including without limitation Customer’s payment of all Fees due hereunder and any restrictions or parameters set forth in this
Agreement, Customer and its Users shall have a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free right
and license to access and internally use the Services for their intended purpose. DroneSense will use commercially reasonable
efforts to provide Customer with access to its Platform consistent with its Service Level Agreement (“SLA”) as set forth on
DroneSense’s website.
2.2. Users. Users shall abide by the terms of this Agreement. Any breach by a User will be deemed to be a breach by
Customer. Customer shall be solely responsible for managing and administering User accounts, including issuing usernames
and passwords, provided that DroneSense may terminate or suspend any User’s access to the Platform for any breach without
notice. Customer shall be solely responsible for the security and confidentiality of Customer’s account information, including
usernames and passwords, and will ensure that no third party uses Customer’s account. Customer shall immediately notify
DroneSense in the event that Customer becomes aware of or has reason to believe a credible threat of any unauthorized
access to the Platform or any violation of the terms of this Agreement by Customer or any User.
2.3. Reports. Subject to Customer’s and its User’s compliance with the terms and conditions of this Agreement (including
those in any applicable Order), DroneSense hereby grants Customer a perpetual, non-exclusive, non-transferable, non-
sublicensable, royalty-free right to use, display and create derivative works of the Reports and the Reports Templates (solely to
the extent incorporated into the Reports) solely for Customer’s internal purposes. Reports may be made available in such
formats as determined in DroneSense’s sole discretion, which may include GeoJSON, GPX or KML.
2.4. Mobile Apps. DroneSense may make Mobile Apps. Your access to and use of Mobile Apps is subject to and governed
by this Agreement. If any Mobile App is downloaded by you from the iTunes App Store, Windows Phone Store, Amazon
Appstore, Google Play, or any similar service (an “App Store”), your use of such Mobile App is further subject to your
compliance in all material respects with the terms and conditions of the applicable usage rules set forth by such App Store. This
TOS is between you and DroneSense only, and not with the proprietor of any App Store (a “Third Party Proprietor”), and no
Third Party Proprietor is responsible for Mobile Apps and the contents thereof; however, any Third Party Proprietor and its
subsidiaries are third-party beneficiaries of this TOS with respect to Mobile Apps.
3. OTHER SERVICES
3.1. Hosting and System Upgrades. Customer acknowledges that DroneSense may host any or all elements and/or
components of the Platform (each, a “Platform Element”), or elements of Platform Elements, using its own infrastructure or it
may engage a third party to host on its behalf. DroneSense currently utilizes Amazon Web Services (AWS) for
hosting certain Platform Elements. Updates to the Platform or any Platform Elements may be provided at DroneSense’s
discretion, and DroneSense may, in its sole discretion, make any changes that it deems necessary or useful to maintain or
enhance the quality or delivery of the Platform or to comply with applicable law. Scheduled system maintenance shall take place
during a normal maintenance window, as reasonably determined by DroneSense. During such time, certain Platform Elements
and their interaction with other Platform Elements may be unavailable and shall not be considered Downtime as provided in the
SLA. Emergency maintenance may be required at other times in the event of system failure.
3.2. Technical Support. During the Term of any Subscription, DroneSense will provide Customer with support regarding
the Platform as provided in the SLA, found at www.dronesense.com, by phone at 833-DS-HELP-5, (833) 374-3575, or by email
at support@dronesense.com.
3.3. Maintenance Services. DroneSense will provide periodic updates and bug fixes for Platform Elements at its discretion
during the Term of any Subscription (“Maintenance Services"). Any such updates or fixes will be considered a part of the
Platform and software owned by DroneSense. DroneSense does not warrant that all errors or defects can or need to be
corrected. For the avoidance of doubt, the terms set forth in Section 7.2 shall also apply to Maintenance Services. Maintenance
Services may include feature charges for update or enhancement releases of Platform Elements.
3.4. Training. Initial training for the Platform is available online and should be scheduled directly with DroneSense.
DroneSense will provide on-site training if purchased by Customer in the applicable Order. Customer is solely responsible for
ensuring that all of its Users are adequately trained with respect to use of the Platform and any other Services.
3.5. DroneSense Response Team. DroneSense has developed the DroneSense Response Team (“DRT”). DRT is a
team of DroneSense employees predominately made up of former first responders. DroneSense acknowledges and agrees that
standard DRT deployments are included with Customer’s Subscription. Customer can request DRT support for a Public Safety
Event. DroneSense shall respond to calls made by Customer to DroneSense’s 24/7 support line or submission of a DRT
request form (“DRT Request”), both of which are provided on the DroneSense website and which specifically allow Customer
to request a DRT response within twenty-four (24) hours. DroneSense shall use commercially reasonable efforts to respond to a
DRT Request within in the time frame set forth in the applicable request form; however, submission of a DRT Request does not
obligate DroneSense to deploy a DRT. DroneSense and Customer shall work in good faith to define the mission scope and
ability to support. Based on the agreed-upon mission scope, DroneSense and Customer shall agree to an appropriate set of
drones and equipment for the mission. Duration and any applicable additional cost or expenses reimbursements would be
mutually agreed to with the Customer ahead of deployment.
The DRT role and capabilities may include:
(a) Providing training on-site to other first responders that have not previously used the Platform;
(b) Troubleshooting any software issues that occur and help identify and resolve networking issues;
(c) Assist in validating and updating correct firmware for agency drones and controllers;
(d) Help set up shared mission codes and coordinate multiple agencies flying collaboratively;
(e) Coordinate and build out map layers to ensure safe operating space for multiple agency operations;
(f) Act as a single point of contact for any DroneSense-related issues back to our support operation center;
(g) Assist with after action report and documentation of flights, recordings and logging of equipment and personnel; and
(h) Provide operational and logistical support.
4. CUSTOMER ACKNOWLEDGEMENTS AND RESPONSIBILITIES
4.1. Customer Responsibilities.
(a) Customer Assistance. Customer shall provide DroneSense with all information, materials and assistance as
reasonably required for DroneSense to activate and operate the applicable Platform Elements for Customer and
its Users pursuant to this Agreement.
(b) Technical Requirements. Customer and its Users shall be solely responsible for obtaining, configuring, and
maintaining any hardware, network connectivity and third-party software required to access the Services, including
computers, operating systems, web browsers and storage devices.
(c) Protection. Customer shall be solely responsible for protecting the confidentiality of Credentials and all activities
undertaken using Customer Facilities. In the event that Customer becomes aware of any unauthorized access to
or use of the Services through use of Customer Facilities, Customer shall promptly give written notice to
DroneSense of such breach and make reasonable efforts to eliminate it. Customer shall at all times implement
appropriate security policies and procedures and access control methodologies to safeguard access to and use of
the Services through Customer Facilities. All such measures shall comply with prevailing industry standards but in
no case consist of less than reasonable care. Furthermore, Customer assumes all risk and liability associated
with sharing any Customer Data, Credentials and/or Customer’s Platform account with any other users of the
Services.
4.2. Compliance with Applicable Law. Customer and each User uses the Platform at its own initiative and risk and is
responsible for compliance with any applicable laws, including without limitation any federal, state or local employment and/or tax laws. WITHOUT LIMITING THE FOREGOING, CUSTOMER IS SOLELY RESPONSIBLE FOR ANY AND ALL LAWS AND
REGULATIONS PERTAINING TO THE OPERATION AND MAINTENANCE OF ANY AIRCRAFT AND/OR CUSTOMER
HARDWARE (AS DEFINED HEREIN). DroneSense may also impose limits on the use or access to the Platform as required by
law. Customer, and not DroneSense, is responsible for the safety and security of any aircraft and/or Customer Hardware
operations carried out by Customer or its Users.
4.3. Third Party Offerings and Integrations. Customer acknowledges that: (a) one or more Platform Elements may
contain Third Party Offerings and Customer's rights in the Third Party Offerings comprised by software are governed by and subject to the terms and conditions set forth in the applicable third party license(s) also set forth therein and Customer acknowledges and agrees to fully comply with such terms and conditions; and (b) enabling certain Integrations in the Services will require Customer to register and create accounts with various Third Party Offerings, or to link and enable such Integrations with existing Third Party Offerings with respect to which Customer may already have an account, and that Customer shall remain solely responsible for its and its Users’ conduct with respect to such Integrations and any Credentials, authorizations, permissions, Customer Data, or other information or actions required or permitted in connection therewith. IN ADDITION TO ANY DISCLAIMERS SET FORTH IN SUCH TERMS AND CONDITIONS, TO THE FULLEST EXTENT PERMITTED UNDER LAW AND ANY APPLICABLE THIRD PARTY LICENSES OR OTHER THIRD PARTY AGREEMENTS, THE DISCLAIMERS SET FORTH AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN SHALL APPLY TO DRONESENSE AND ITS LICENSORS WITH RESPECT TO ALL INTEGRATIONS AND THIRD PARTY OFFERINGS.
4.4. Restrictions. Customer may not rent, lease, lend, sell, redistribute, reproduce, or sublicense any Platform Element, or
use any Platform Element as a service bureau. Customer may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, create derivative works of any Platform Element, or any part thereof, or use any Platform Element in violation of any law or regulation. If for some reason these restrictions are prohibited by applicable law or by an agreement DroneSense has with one of its licensors, then the activities are permitted only to the extent necessary to comply with such law or license(s). Customer shall not exploit any Platform Element in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. Customer will comply with reasonable storage guidelines, each as established from time to time by DroneSense. DroneSense reserves the right to limit Customer's storage of Customer Data (as defined herein) if Customer exceeds reasonable amounts. Customer will be solely responsible for the following: (i) providing all hardware, software, networking and communications capabilities, including any cellular data plans, storage devices, or SIM cards, required for use of the Platform; (ii) at all times using the Platform in strict accordance with the applicable documentation and any other written instructions provided by DroneSense; (iii) using the Platform in a manner that does not infringe the Intellectual Property, privacy or other rights of third parties; (iv) ensuring that Customer and its Users do not upload or transmit Malicious Code via the Service; or (v) ensuring the Platform is not used for any illegal, unauthorized, or other improper purposes. No User shall share their username or password with other individuals within or outside of Customer's organization without DroneSense's written approval.
5. INTELLECTUAL PROPERTY
5.1. Reservation of Rights. The Services are licensed, not sold, and all intellectual property rights in and to the Platform
and all Platform Elements shall remain the sole and exclusive property of DroneSense and/or its licensors. Except as expressly
stated in this Agreement, DroneSense does not grant Customer any rights to DroneSense’s intellectual property. For the
avoidance of doubt, DroneSense shall own all Reports Templates.
5.2. Feedback. If Customer or any of its Users submits to DroneSense comments, suggestions, or other feedback
regarding the Platform or any Platform Element ("Feedback”), Customer agrees that DroneSense will be free to use such
Feedback for product improvement without accounting or obligation.
5.3. Rights in Customer Data. As between DroneSense and Customer, Customer shall own all right, title, and interest in
and to any data that is collected by DroneSense from Customer and its Users, and in connection with their use of the Platform
(“Customer Data”). Customer hereby grants and agrees to grant to DroneSense a non-exclusive, transferable, sublicensable,
royalty free, fully paid-up license to use such Customer Data in order to exercise its rights and perform its obligations stated
herein and as necessary to monitor and improve the Platform. DroneSense shall have the right to use Anonymized Data to
collect, develop, create, extract, or otherwise generate statistics and other information and to otherwise compile, synthesize and
analyze Anonymized Data. DroneSense shall be the sole and exclusive owner of the Anonymized Data. Customer shall have
sole responsibility to back up Customer Data in its possession, and Customer agrees and acknowledges that post termination or
expiration of this Agreement it may not have access to the Customer Data.
5.4. Privacy Policy. In addition to these Terms, the DroneSense Privacy Policy at https://www.dronesense.com/privacy-
policy (“Privacy Policy”) applies to how DroneSense may process information provided as part of the Services. Customer
acknowledges and agrees that by accessing or using the Services, DroneSense may receive certain information about
Customer and its Users, including personal data, as set forth in the Privacy Policy, and DroneSense may collect, use, disclose,
store, share, and process such personal data in accordance with such Privacy Policy.
6. PAYMENT TERMS
6.1. Fees. Applicable fees and pricing for the Subscription are set forth on the Order (“Fees”). Subscription renewal pricing
is specified in Section 11.2 and 11.3 .
6.2. Payment Terms. If nothing in the Order is stated to the contrary, or no such pricing terms are provided, all Fees shall
be due and payable by Customer within thirty (30) days after the date of invoice. Customer hereby agrees to pay DroneSense
all Fees by issuing a check to DroneSense or using a credit card or other electronic payment method on file with Customer's
account. The Services may include or provide access to various payment processors (each, a “Payment Processor”, e.g.,
Stripe or PayPal). Customer hereby (i) acknowledges and agrees that DroneSense may use any such Payment Processor in
connection with its collection of Fees, (ii) acknowledges and agrees that DroneSense will not be responsible for any payments
or charges as a result of Customer’s failure to provide up-to-date and accurate information to any such Payment Processor, (iii)
authorizes DroneSense and its Payment Processors to charge all Fees to Customer’s chosen payment method, and (iv) agrees
to abide by such Payment Processor’s then-current terms of use and to pay any associated processing fees. All Fees are non-
refundable and are payable in U.S. dollars. Any Fees remaining unpaid for more than fifteen (15) days past their due date shall
accrue interest at a rate of one and one-half (1.5%) percent per month or the highest rate allowed by law, whichever is lower.
DroneSense may also (at its discretion and in addition to other remedies it may have) suspend or revoke the Services, and
Customer's and its Users' access to the Platform if any invoice remains unpaid for more than fifteen (15) days.
6.3. Taxes. The Fees set forth on the Order do not include local, state or federal sales, use, value-added, excise or
personal property or other similar taxes or duties, and any such taxes shall be assumed and paid by the Customer except those
taxes based on the net income of DroneSense. DroneSense shall have no liability for any taxes owed by Customer or its Users
as a result of the Customer's use of the Platform. If Customer is a tax-exempt, or equivalent, entity, Customer shall provide a
copy of the tax-exemption certificate to DroneSense upon execution of Order.
7. WARRANTIES AND DISCLAIMER
7.1. Mutual Warranties. Each party represents that: (i) it is a public entity or a corporation that is duly organized, validly existing, and in good standing in the jurisdiction in which it is incorporated; (ii) that it has the requisite power and authority to execute and deliver this Agreement and to carry out the transactions contemplated by this Agreement and that it will do so in accordance with the terms set forth herein; and (iii) acknowledges that this Agreement is subject to applicable law. Each party represents and warrants that it has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would preclude it from complying with the provisions hereof.
7.2. Disclaimer. THE FOREGOING CONSTITUTES DRONESENSE'S ONLY WARRANTIES CONCERNING THIS AGREEMENT AND THE PLATFORM, AND THE FOREGOING IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT OR OTHERWISE. CUSTOMER SHALL NOT AND HAS NO AUTHORITY TO MAKE ANY WARRANTY ON BEHALF OF DRONESENSE TO ANY USER CONCERNING THE SERVICE.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS.
8. CONFIDENTIALITY
8.1. Definition. "Confidential Information" means any proprietary information, Customer information, product plans,
inventions, technical data, trade secrets, know-how, or other business information, in each case disclosed by a disclosing party
hereunder that is either (i) indicated to be confidential or proprietary or (ii) of which a reasonable person would assume to be
confidential given the circumstances surrounding disclosure. Except as otherwise provided for herein, DroneSense’s
Confidential Information includes, without limitation, the Platform, each Platform Element, the Services, any DroneSense software, and the terms and conditions of this Agreement. Customer’s Confidential Information includes, without limitation, the Customer Data.
8.2. Exclusions. Notwithstanding Subsection 8.1 , Confidential Information shall not include information which: (a) is now available or becomes available to the public without breach of this Agreement by the receiving party; (b) is lawfully obtained by the receiving party from a third party without a duty of confidentiality; (c) is known to the receiving party prior to such disclosure as evidenced by documents in the receiving party’s possession immediately prior to the time of disclosure; or (d) is, at any time, developed by the receiving party independent of and without reference to any of the receiving party’s Confidential Information.
8.3. Non-Use and Non-Disclosure. The receiving party shall not disclose the disclosing party’s Confidential Information to any third party (other than as set forth herein) and may only use the disclosing party's Confidential Information (i) for the intended business purpose related to this Agreement or (ii) as expressly set forth herein. Both parties shall protect Confidential Information from disclosure and misuse by using the same degree of care as for their own confidential information of like importance but in no event less than a standard of reasonable care. It is understood that Confidential Information shall remain the sole property of the disclosing party unless otherwise expressly set forth herein.
8.4. Disclosure Required by Law. Notwithstanding Subsection 8.3 above, a receiving party may disclose the other party's
Confidential Information if the information is required by law to be disclosed in response to a valid order of a court of competent
jurisdiction or authorized government agency, provided that the receiving party must (i) give the disclosing party prompt written
notice and obtain or allow for a reasonable effort by the disclosing party to obtain a protective order prior to disclosure and (ii)
limit such disclosure to the greatest extent possible.
9. LIMITATION OF LIABILITY AND REMEDIES
9.1. NO LIABILITY FOR THIRD PARTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DRONESENSE SHALL HAVE NO LIABILITY OR OBLIGATION WITH RESPECT TO THIRD-PARTY PRODUCTS OR SERVICES., INCLUDING THE THIRD PARTY OFFERINGS CUSTOMER'S SOLE REMEDIES WITH RESPECT THERETO SHALL BE BETWEEN CUSTOMER AND THE APPLICABLE THIRD-PARTY.
9.2. DISCLAIMER OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR LIABILITIES RESULTING FROM A BREACH OF SECTION 4 (“CUSTOMER ACKNOWLEDGEMENTS AND RESPONSIBILITIES”) OR SECTION 8 ("CONFIDENTIALITY”), A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 , OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR EXPENSES (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, LOST PROFITS, OR
LOST SAVINGS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
9.3. MAXIMUM LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITIES RESULTING FROM A BREACH OF SECTIONS 4 (“CUSTOMER ACKNOWLEDGEMENTS AND RESPONSIBILITIES”), 6 ("PAYMENT TERM”), AND 8 (“CONFIDENTIALITY”), A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 , OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY’S LIABILITY HEREUNDER (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) EXCEED, IN THE AGGREGATE, THE FEES RECEIVED BY DRONESENSE HEREUNDER. IN NO EVENT SHALL DRONESENSE BE LIABLE FOR ANY DAMAGES CAUSED BY CUSTOMER’S OPERATION OR
MAINTENANCE, OR LACK THEREOF, OF ANY DRONES OR CUSTOMER HARDWARE.
9.4. Allocation of Risk. The allocations of liability in this Section represent the agreed and bargained-for understanding of the parties and voluntary allocation between them of the risk associated with Customer’s use of the Platform and, but for this provision, neither party would have entered into the Agreement. DroneSense’s compensation reflects such allocations, and the limitations and exclusions will apply notwithstanding the failure of essential purpose of any limited remedy contained herein.
10. INDEMNIFICATION
10.1. By DroneSense. DroneSense shall defend Customer from and against any claim, demand, investigation, or action in
any form brought by a third party (“Claim”) against Customer, and indemnify and hold Customer harmless from any damages, liabilities, losses, costs, and expenses, including reasonable attorneys’ and experts' fees, in each case that are finally awarded to the third party by a court of competent jurisdiction or otherwise owed in any settlement, (“Loss”) in each case to the extent arising from or related to any allegation that any Platform Element infringes, misappropriates, or otherwise violates any U.S. patent, copyright, or trade secret. Notwithstanding the foregoing, DroneSense will have no liability for any infringement claim of any kind if the claim results from: (a) modifications made other than by DroneSense; (b) unauthorized or unlicensed use; (c) any Third Party Offerings; (d) the combination, operation or use of any Platform Element with equipment, devices or software not supplied by DroneSense, to the extent such a claim would have been avoided if the Platform Element was not used in such combination; (e) use of information, materials, Content, Customer Data, or marks provided to DroneSense; or (f) or compliance by DroneSense with designs, plans or specifications furnished by or on behalf of Customer.
10.2. By Customer. To the maximum extent permitted by applicable law, Customer shall defend DroneSense from and
against any Claim against DroneSense, and indemnify and hold DroneSense harmless from any Loss in each case to the extent arising from or related to: (a) unauthorized, negligent or illegal use of the Services, or any Customer Hardware; (b) any Customer Data provided by Customer or a User, or (c) personal injury, property damage or loss of life caused by Customer Hardware.
10.3. Rights Upon Infringement. If Customer's use of the Platform is, or in DroneSense’s opinion is likely to be, enjoined
due to the type of infringement specified in Subsection 10.1 above, DroneSense may, at its sole option and expense: (a)
procure for Customer the right to continue using the same under the terms of this Agreement; (b) replace or modify the same so that it is non-infringing; or (c) if options (a) and (b) above cannot be accomplished despite DroneSense's commercially reasonable efforts, then DroneSense may terminate Customer’s rights and DroneSense’s obligations hereunder and refund a pro-rata portion of any pre-paid Fees paid therefore, based upon Customer's use to date.
10.4. Conditions Precedent. The indemnifying party will have no obligation under this Section as to any claim, suit, or
proceeding unless: (a) the indemnified party promptly notifies the indemnifying party in writing of such claim, suit, or proceeding; (b) the indemnifying party has sole control of its defense and settlement; and (c) the indemnified party, upon request of the indemnifying party, cooperates in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom.
10.5. Sole Remedy. The provisions of this Section set forth DroneSense's sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement of any Intellectual Property rights of any kind.
11. SUBSCRIPTIONS, TERM AND TERMINATION
11.1. Term. This Agreement will commence on the Effective Date and, unless terminated as set forth herein, will continue for so long as a Subscription is still in effect hereunder, including any renewal terms.
11.2. Single Year Subscriptions.
(a) A Single Year Subscription will be for the one-year initial term, and pricing will be at the rate specified in the Order. Single Year Subscriptions and any Additional Subscriptions shall automatically renew for successive one-year periods at DroneSense’s then current pricing unless a party notifies the other of its intention not to renew at least thirty (30) days prior to the end of the initial term of a Subscription or thirty (30) days prior to the end of the renewal term. The initial term and all renewal terms shall be the “Term” of the applicable Single Year Subscription.
(b) At any time during a Single Year Subscription, Customer may order additional drones to be added at the then current DroneSense price (an “Additional Subscription”). The prices for Additional Subscriptions will be the then-current subscription price applicable to Customer and pro-rated for time remaining in the current Subscription Period. For Additional Subscriptions (a) Customer will be able to use DroneSense software for 15 days, (b) after 15 days Customer will need to either archive the new drone(s) or be invoiced for the Additional Subscriptions, (c) the term will be coterminous with the Single Year Subscription, (d) are payable net 30 after invoice, and (d) are subject to auto renewal the same as set forth above for Single Year Subscriptions.
11.3. Multi-Year Subscriptions.
(a) If Customer enters into a Subscription for a period of two or more years (a “Multi-Year Subscription”), the license pricing will be as set forth in the Order (Contract Price) and will not increase during the Term of the Subscription unless stated otherwise in the applicable Order. Renewals of a Multi-Year Subscription may be at the original Contract Price or at DroneSense’s then current pricing, as determined in DroneSense’s sole discretion. Payment for each year during the Term will be due annually on each anniversary of the Effective Date. For Multi- Year Subscriptions, the Subscription shall automatically renew for successive one (1) year periods (regardless of the duration of the initial duration of the Multi-Year Subscription) unless one party notifies the other of its intention not to renew at least thirty (30) days prior to the end of the applicable period. The initial term and all renewal terms
shall be the “Term” of the applicable Multi-Year Subscription.
(b) At any time during a Multi-Year Subscription, Customer may order Additional Subscriptions. The prices for the Additional Subscriptions will be the then-current subscription price applicable to Customer and pro-rated for time remaining in the current Multi-Year Subscription period. For Additional Subscriptions (a) Customer will be able to use DroneSense software for 15 days, (b) after 15 days, the Customer will need to archive the new drone(s) or DroneSense will invoice customer for the Additional Subscription, (c) the term will run coterminous with the Multi-Year Subscription, (d) the invoice is payable at Customer’s option either net 30 of invoice date, or in arrears at the end of the current term, and (d) are subject to auto renewal the same as set forth above for Multi-Year Subscriptions. Customer will notify DroneSense of its payment choice within ten (10) days of invoice.
11.4. Termination. In the event (a) that a party is in material breach of the terms of this Agreement applicable to a given Subscription and (i) does not cure such breach within thirty (30) days following notice thereof or (ii) such breach is not curable or (b) an emergency event necessitating termination or suspension by DroneSense, then the other party may immediately suspend performance (including delivery and/or access to the applicable Platform Element, in the case of DroneSense) or terminate the applicable Subscription by sending written notice to the breaching party. Unless otherwise expressly specified as applying only to a given Subscription, Customer’s obligations under this Agreement shall apply to any and all Subscriptions issued hereunder, and an uncured breach thereof shall entitle DroneSense to terminate any and all other Subscriptions and/or this Agreement. Subject to Section 5.3 of this Agreement, upon termination, Customer must retrieve its Customer Data in the allotted time period communicated by DroneSense, after which DroneSense will destroy the Customer Data, except for Anonymized Data. DroneSense must promptly return any and all Customer Data collected, maintained, created or used in the course of the performance of this Agreement, in whatever form it is maintained, at the request of the Customer, except for Anonymized Data.
11.5. Effect of Expiration or Termination. Sections 6 (with respect to amounts accrued or payable prior to termination),
and 4.3 , 4.4 , 5 , 6 , and 7 - 12 shall survive any expiration or termination of this Agreement. All other rights and obligations shall
cease and be of no further force or effect.
12. GENERAL
12.1. Entire Agreement. This Agreement, including the Orders and any schedules and/or attachments referenced herein or issued hereunder, constitute the entire agreement of the parties with respect to the subject matter contemplated herein, and supersede any prior representations, agreements, negotiations, or understandings between them, whether written or oral, with respect to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by duly authorized representatives of the parties hereto, or unless and except to the extent Customer accepts a subsequent click-to-accept agreement delivered by DroneSense via the Platform.
12.2. Governing Law, Jurisdiction, and Venue. The Agreement will be governed by the laws of the State of Texas. The parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to this Agreement and the performance of the parties contemplated herein, to the extent that such convention might otherwise be applicable. Unless otherwise required by law, the parties hereby agree that any action or legal proceeding shall be brought only in a court of competent jurisdiction in Travis County, Texas. Each Party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any such claim.
12.3. Relationship of Parties. The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. DroneSense reserves the right to utilize subcontractors.
12.4. Attorneys’ Fees. In any court action at law or equity which is brought by one of the parties to enforce or interpret the provisions of this Agreement and to the maximum extent permitted by applicable law, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled.
12.5. Equitable Relief. The parties agree that a material breach of this Agreement or restrictions set forth herein may cause irreparable injury to DroneSense for which monetary damages alone would not be an adequate remedy, and therefore DroneSense, to the maximum extent permitted by applicable law, shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law, including a temporary and permanent injunction, without the requirement of posting bond or proving actual damages.
12.6. Force Majeure. Except for payments by Customer that are not prohibited by applicable law, neither party shall be deemed to have breached any provision of this Agreement as a result of any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, pandemics, fires, transportation contingencies, interruptions in third-party telecommunications or Internet equipment or service, other accidents or catastrophes, or any other occurrences which are beyond such party’s control.
12.7. Government Use. The use, duplication, reproduction, release, modification, disclosure, or transfer of the Platform, no matter how received by the United States Government, is restricted in accordance with the terms and conditions contained herein. All other use is prohibited. Further, the Platform was developed at DroneSense’s private expense and is commercial in nature. By using or receiving the Platform, any Government user agrees to the terms and conditions contained in this Agreement including the terms and conditions contained in this paragraph.
12.8. Assignment. Neither party may assign this Agreement, in whole or in part, without the other party's prior written consent, provided that no consent is required in connection with a merger, reorganization, consolidation, amalgamation, sale of assets, change of control, or similar transaction. Any purported assignment in violation of this Section shall be null and void. The Agreement shall be binding on all permitted successors and assigns.
12.8. Severability. The invalidity or unenforceability of any provision hereof, or any terms thereof, shall not affect the validity of this Agreement as a whole, which will at all times remain in full force and effect.
12.9. Waiver. The failure of either party to enforce at any time the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition, or requirement.
12.10. Order of Preference. If there is a conflict between the terms and conditions of this Agreement and any contracts incorporated by reference, the terms and conditions set forth in these Terms shall take precedence.
12.11. Notices. All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth below or in the Order or to such other address as may be specified by either party to the other in accordance with this Section.
Revised March 15, 2024